Can my firm mail a newsletter to companies or individuals who aren't current clients?

Plain-English summary

An attorney asked the panel whether it was permissible under the Code of Professional Responsibility for his firm to mail a newsletter to companies or individuals who were not currently clients of the firm.

The panel quoted DR 2-103(A), which bars a lawyer from recommending employment of himself, a partner, or an associate to a layperson who has not sought his advice regarding employment of a lawyer, except as authorized under DR 2-101(B). It noted that DR 2-101(B) lists 25 informational items a lawyer may publish or broadcast, and found that the newsletter described did not fall within the ambit of those exceptions. Thus, the panel held, the direct contact proposed would constitute a violation of DR 2-103(A).

As in its treatment of direct-mail solicitation more generally, the panel noted the limits of its own authority: it is empowered only to interpret the Rhode Island Code of Professional Responsibility, and because the Rhode Island Supreme Court had not yet amended the Code in response to Shapero v. Kentucky Bar Association, the panel could not use that decision's rationale or holding in its analysis.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct. The opinion itself notes that Rhode Island had not yet amended its Code of Professional Responsibility in response to Shapero v. Kentucky Bar Association (U.S. 1988), which held that targeted direct-mail solicitation of known prospective clients is constitutionally protected commercial speech. Subsequent rule amendments have addressed direct-mail solicitation and firm newsletters; this opinion's DR 2-103(A) analysis reflects only the pre-amendment rule. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can my firm mail a general newsletter to non-clients?

A: Not under this opinion's analysis of the rule as it then stood. The panel held that a newsletter mailed to non-clients did not fit any of DR 2-101(B)'s 25 permitted informational items, so it violated DR 2-103(A)'s bar on recommending one's own employment.

Q: Why couldn't the panel apply the Shapero decision here?

A: The opinion states the panel could not use "the rationale or holding of Shapero" because the Rhode Island Supreme Court had not yet amended the Code of Professional Responsibility in response to that decision.

Background and rules framework

The opinion applies DR 2-103(A) (barring a lawyer from recommending his own employment to a layperson who has not sought advice about hiring a lawyer) and its DR 2-101(B) list of 25 permitted informational publications, from the ABA Model Code of Professional Responsibility then in force in Rhode Island, to a firm newsletter mailed to non-clients.

Citations and references

Rules of Professional Conduct:

• RI DR 2-103(A) (recommending one's own employment to a layperson who has not sought advice about hiring a lawyer)
• RI DR 2-101(B) (25 permitted informational items a lawyer may publish or broadcast)

Statutes:

• None cited.

Cases:

• Shapero v. Kentucky Bar Association, 56 U.S.L.W. 4532 (U.S. June 13, 1988), targeted direct-mail solicitation as protected commercial speech (rationale not applied, as Rhode Island had not yet amended its Code)

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-22: Direct-Mail Letters to Accident Victims Under the Code of Professional Responsibility, Before Rhode Island Adopted Shapero: the panel's companion opinion, issued the prior month, applying the same DR 2-103(A)/Shapero analysis to targeted letters rather than a general newsletter.
• ABA Formal Opinion 501: Solicitation

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-27.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-27, REQUEST #24
Issued October 20, 1988

An attorney seeks Panel advice as to whether it is permissible under the Code of Professional Responsibility for his firm to mail a newsletter to companies or individuals who are not currently clients of the firm.

Disciplinary Rule 2-103(A) provides that "[a] lawyer shall not, except as authorized in DR 2-101(B) recommend employment as a private practitioner of himself, his partner or associate to a lay person who has not sought his advice regarding employment of a lawyer." Disciplinary Rule 2-101(B) lists 25 informational items which a lawyer may publish or broadcast. The newsletter described does not fall within the ambit of these exceptions. Thus, the direct contact proposed would constitute a violation of DR 2-103(A).

The Ethics Panel of the Rhode Island Supreme Court is only empowered to interpret the Rhode Island Code of Professional Responsibility. The Rhode Island Supreme Court has not yet changed the Code in response to Shapero v. Kentucky Bar Association, 56 USLW 4532 (U.S. June 13, 1988); therefore the Panel cannot utilize the rationale or holding of Shapero in its analysis of an inquiry.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.